Justice Delayed or Justice Denied? a Contemporary Review of Capital Habeas Corpus

By Gould, Jon B. | Justice System Journal, September 1, 2008 | Go to article overview

Justice Delayed or Justice Denied? a Contemporary Review of Capital Habeas Corpus


Gould, Jon B., Justice System Journal


In the last year, researchers released two reports about capital cases and habeas corpus. Together, these studies offer a contemporary snapshot of postconviction review and illustrate the influence of state collateral processes on capital habeas litigation in the federal courts. This essay examines those new findings, seeking to pair the studies to understand how the processing of capital habeas petitions has changed since the last wave of national reform and to explain why the courts differ in the time and attention they give these cases. Although capital habeas-corpus petitions now take twice as long to complete in the federal courts as they did over a decade ago, the new studies report considerable geographic disparities in the processing of capital habeas petitions and also point to sources that lie in state, not federal, litigation. The federal courts must not only pick up the pieces when states fail at collateral review, but also, in occasionally taking their time to review habeas matters more thoroughly, ensure that due process means as much in practice as it does in theory.

"Death is different," Justice Thurgood Marshall reminded us in the case of Ford v. Wainwright (1986, at 411). Given the stakes at issue in capital prosecutions, courts and commentators have devoted extra attention to the procedures and processes used to try, convict, and sentence defendants to death. Much of that review has been accomplished by the writ of habeas corpus, a right protected under the U.S. Constitution that permits prisoners to challenge the constitutionality of their convictions and sentences. Habeas corpus has long been a subject of controversy, as partisans have simultaneously questioned the efficiency and effectiveness of the habeas process.

In the last year, researchers released two reports about capital cases and habeas corpus. The first, by Judge Arthur Alarcón of the U.S. Court of Appeals for the Ninth Circuit, concerns the processing of capital cases in California. The second, funded largely by the National Institute of Justice and conducted by Professor Nancy King of Vanderbilt Law School and Fred Cheesman and Brian Ostrom of the National Center for State Courts, examines federal habeas-corpus processing nationwide and the handling of capital habeas cases in thirteen federal district courts. Together, these studies offer a contemporary and complementary snapshot of postconviction review and illustrate the influence of state collateral processes on capital habeas litigation in the federal courts.

The picture that emerges is unlikely to satisfy critics, for capital habeas petitions now take twice as long to complete in the federal courts as they did at the time of the last national reform in 1996. Indeed, not one of the federal courts studied has been able to complete habeas review in less than an average of 500 days, well above the limits that prior legislation established for states that sought a fast-track option. Lest these studies generate additional proposals by Congress to limit habeas review, critics would do well to consider why habeas cases take as long as they do, for the new studies report considerable geographic disparities in the processing of capital habeas petitions and also point to sources that lie in state, not federal, litigation.

This essay examines those new findings, seeking to pair the studies to understand how the processing of capital habeas petitions has changed since the last wave of national reform and to explain where possible why the courts differ in the time and attention they give diese cases. In doing so, the article provides a recent history of habeas reform, summarizes the recent research on capital habeas, and challenges the critics of collateral review to address the likely sources behind the problems they so casually condemn.

Readers should understand that this article is addressed to the processing of capital habeas petitions, not necessarily to their results. …

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Justice Delayed or Justice Denied? a Contemporary Review of Capital Habeas Corpus
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